Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Commissioner Wright calls for use of conventional antitrust principles in IP cases, (Mar 13, 2014)

By Jeffrey May, J.D.

Commissioner Joshua D. Wright discussed the FTC’s recent enforcement actions applying the antitrust laws to intellectual property rights (IPRs) and the agency’s policy initiatives involving IPRs at the New York City Bar Association’s 2014 Milton Handler Lecture on March 11.

In his remarks—entitled “Does the FTC Have a New IP Agenda?”—Wright cautioned against ad hoc antitrust analysis of IPRs. He suggested that the FTC should reaffirm the “symmetry principle” —the principle that the application of antitrust law to IPRs is in parity with the approach applied to real property. This approach is enshrined in the joint Department of Justice/FTC 1995 Guidelines on licensing IPRs, he noted.

According to Wright, the FTC has followed the symmetry principle when considering horizontal restraints involving IPRs, reverse payment settlements, IPR licensing arrangements, deceptive conduct in the standard setting process to maintain a monopoly, and mergers involving IPRs. “[S]ymmetry provides a consistent and predictable theoretical framework for antitrust challenges involving intellectual property, just as antitrust functions for all other kinds of property,” Wright contended.

Wright expressed his view that departures from the symmetry approach not only lack analytical support but are also potentially harmful. Wright questioned the notion that IPRs are inherently different from other property rights and, for antitrust purposes, inherently suspect.

“[I]f there are valid reasons and evidence for departing from the symmetry principle, the FTC should be clear about the reasons for treating IPRs differently,” Wright said. “At the very least, the FTC ought to be cognizant and cautious of the departure that appears to be underway, and evaluate vigilantly whether it is the best policy going forward for the sake of competition, innovation, and consumer welfare.”

News: Antitrust FederalTradeCommissionNews